A weblog for students engaged in doctoral studies in the field of human rights. It is intended to provide information about contemporary developments, references to new publications and material of a practical nature.

Even those not familiar with Portuguese
will have no trouble seeing the resemblance to the definition in article 2 of
the Genocicde Convention. What is unique about the Brazilian draft is the
proposal to include ‘orientação sexual,’. Although most national legislators
adopt the definition in the Genocide Convention without any change, something
that confirms its virtual universality, innovation is not at all unknown and
there have been many efforts to modify the definition over the years. For a
full list, see the recent book by David Nersessian, Genocide and Political
Groups.

The Brazilian proposal is, to my
knowledge, the first to include sexual orientation. In 1985, in his celebrated
report on genocide to the United Nations Sub-Commission the Prevention of
Discrimination and the Protection of Minorities, Benjamin Whitaker mooted the
idea of amending the definition to include homosexuality.

Tuesday, 21 August 2012

Genocide
rears its head as a campaign issue in the United States elections once again.
In September 2004, George Bush and Colin Powell launched the charge that the
Sudanese government was committing genocide. It was a demagogic appeal aimed at
obtaining votes from American fundamentalists. Some months later, a United
Nations Commission of Inquiry ruled that the word genocide was not an
appropriate description of the atrocities that had taken place in Sudan.

This
time around, it is Mitt Romney trying the same trick. Yesterday, in New
Hampshire, he made a statement concerning Iranian President Ahmadinejad.

‘What Ahmadinejad said this past week about Israel ... the awful,
offensive, obnoxious things he said should
lead to him being indicted under the Genocide Convention [and] his people being
treated like the pariah they are’, Romney said. Romney was referring to
one of Ahmadinejad’s periodic outbursts, in which the Iranian president
apparently said that the State of Israel was a ‘cancerous tumour’ that should
be ‘destroyed’.

Nobody is claiming that Ahmadinejad or Iran have actually committed
genocide. There is a Jewish minority in Iran, represented in Parliament, that
is probably better off than Jewish communities in many countries of the Middle
East.

Romney was building on a campaign that has been going on for several
years now aimed at charging Iran, and its President, with ‘direct and public
incitement to commit genocide’. This is a distinct crime from genocide as such,
and exists even if genocide itself is not committed. It is committed by words
alone.

When the United States incorporated the crime of genocide into federal
legislation, in 1988, it provided that direct and public incitement to genocide
was subject to a fine of not more than $500,000 or imprisonment for a maximum
of five years. On the Richter scale of crime in the United States, it is hardly
a tremor.

Inevitably, the crime of direct and public incitement involves
interpreting words that are susceptible of more than one meaning. The Rwanda
Tribunal has convicted people for incitement, but the challenge of interpreting
the meaning of specific comments prior to and during the Rwandan genocide is
simplified enormously by the fact that genocide actually took place. Similarly,
we understand that Nazi talk about a ‘final solution’ meant genocide, but that
is because of the deeds that followed the words.

In the case of Ahmadinejad, what are the deeds that help us construe the
words? His attackers point to Iran’s alleged efforts to obtain nuclear weapons.
Indeed, in yesterday’s speech Romney made the link. It is argued that Iran
wants to get nuclear weapons in order to destroy Israel and thereby fulfill its
genocidal ambitions.

The purported genocidal association between Ahmadinejad’s words and
Iran’s nuclear plans is pretty thin. Isn’t it far more plausible that Iran
wants nuclear weapons as protection, and deterrence, given that its major
strategic and military threats in the region actually have nuclear weapons?

Of course Romney’s charges are also part of his well-known declarations
of support for Israel’s threatened military attack on Iran. In that context,
the genocide charges look like nothing more than sabre rattling for aggression
by Israel. On his recent trip to Israel, Romney endorsed an Israeli military attack
on Iran. He also made his bizarre statement about how Jewish culture accounts
for Israel’s prosperity, something that many took as an insult to Palestinians
and Arabs. I thought the suggestion that Jews are good with money also sounded
like old-time anti-Semitism, but his Zionist cheerleaders seem prepared to
overlook the point.

What to make of Ahmadinejad’s remarks? The most plausible interpretation
is that he posits the destruction of the State of Israel. But that is not at
all the same thing as the extermination of the State’s inhabitants. Anyway, the
speculative hypothesis of an Iranian nuclear attack aimed at destroying Israel
would also kill millions of Palestinians and other Arabs. This hardly makes
sense, even for a reckless tyrant like Ahmadinejad.

In Ireland there are many who would like to ‘destroy’ the state of
Northern Ireland. They don’t mean exterminating its inhabitants. During the
Cold War, there were those who called for the destruction of the Soviet Union,
and of Yugoslavia. They were successful, by the way. But obviously that did not
mean extermination of the populations of those states. Are those who call for a
‘one-state solution’ - that is, a secular democratic state that may at some
point in the near future have a Palestinian majority – endorsing the
destruction of Israel? Certainly it would be the end of Israel as we know it.

Ahmadinejad’s comments may lend themselves to varying interpretations,
but when read in context they cannot be viewed as incitement to genocide.
Confronting the threat of genocide is one of the existential problems of our
time. But beware of those who brandish the word cavalierly, especially if they
are trying to build support for an illegal military attack on a foreign
country, or to stifle political discussion about the future of Israel, or
campaigning for the United States Presidency on behalf of the Republican Party.

Monday, 13 August 2012

One of the world’s great scholars on capital punishment, Hugo Adam Bedau,
passed away early this morning. Hugo was Austin B. Fletcher Professor of
Philosophy at Tufts University for most of his career. He combined first class academic work with
great devotion to the campaign to abolish the death penalty, particularly in the
United States. His major work, The Death
Penalty in America, now in its fourth edition, first appeared in 1964 and had enormous influence on the debate.
He did much to advance the cause of abolition within the United States,
although there were many ups and downs in the struggle during his great and
distinguished career. In the 1960s, he saw capital punishment come to a halt in
the United States. By the early 1970s, the Furman ruling of the Supreme Court
created hopes that it was permanently at an end. Then, the death penalty
revived, reaching a peak in the late 1990s. Since then, it has continued to
decline in the United States, and judicial abolition may not now be too far
away. During his last decade, Hugo witnessed important judgments of the Supreme
Court that restricted the use of capital punishment.
Hugo celebrated his 75th birthday at my home in the west of Ireland when he
attended an international conference on capital punishment hosted by the Irish
Centre for Human Rights and the Université de Paris II in September 2001. We celebrated
with champagne and cake and many friends, including Mike Radelet, Roger and Nancy Hood, Sandra
Babcock, Nigel Rodley, Christina Cerna, Emmanuel Decaux, Peter Hodgkinson and many others. I last saw Hugo in Boston
in late June of this year, when he attended a public symposium organized by two
of the United Nations special rapporteurs. Nigel Rodley and I had a wonderful
chat with him, reminiscing about human rights activities we had attended
together over the years. He was doing poorly, and had not been well for some time. His effort to attend the meeting was remarkable, and this last meeting with him was charming and memorable.
Our sympathies go out to his wife, Constance Putnam, and to the rest of his
family.

Sunday, 12 August 2012

The
Inter-American Commission on Human Rights recently released a nearly 200-page report on capital punishment, with a focus on its own case law and that of the
Inter-American Court of Human Rights. It is entitled The Death Penalty in the
Inter-American Human Rights System: From Restrictions to Abolition.

This is a
very thorough review of the applicable law that demonstrates the important role
the Inter-American institutions have played in its development.

If a
criticism of this otherwise excellent report may be permitted, there is an
obvious truth about capital punishment in the western hemisphere that does not
emerge: the death penalty has virtually disappeared, with one, single
exception.

Over the
past decade, several hundred executions have taken place within the United
States, while a handful have been conducted elsewhere in the hemisphere. There
was one execution in St Kitts and Nevis in 2008, and three in Cuba in 2003.
Aside from the United States, that’s it.

Several
states in the Caribbean continue to sentence people to death. But executions
are not carried out. Much of the responsibility for this is due to the
energetic work of lawyers in the region, and in England, who have launched
effective judicial attacks. Cuba now appears to have abandoned the death penalty.

The most
important observation that can be made about the death penalty in the
Inter-American human rights system is that it has disappeared, for all intents
and purposes, with this one terrible exception. The Inter-American human rights
system deserves much of the credit for this development. In order to progress the idea of abolition in the United States, it is essential that we continue to remind Americans of how isolated they really are. It is also important to point out that the disappearance of capital punishment on a regional level is not just a European phenomenon (with one exception - Belarus). The death penalty has also virtually disappeared in the western hemisphere (with one exception - the United States) and in Africa (with a few exceptions).

The latest
book by the Peruvian writer Mario Vargas Llosa, El sueño del celta (The
Dream of the Celt), describes some of the earliest human rights
investigations of modern times. It is a somewhat fictionalised account of the
life of Sir Roger Casement, an Irishman who worked for the British diplomatic
service. The book is built around three main themes, two of which are human
rights fact-finding investigations conducted by Casement around the beginning
of the twentieth century.

Casement was
assigned by London to inquire into human rights abuses in the Congo Free State,
then the person fiefdom of King Leopold II of Belgium. Casement was not the
first to expose the terrible abuses but his authoritative report had
extraordinary influence. No doubt influenced by Casement’s findings, Mark Twain
published his own satirical book, King Leopold’s Soliloquy.Following publication of the report, Casement
developed an international reputation as a human rights investigator.

Much of this
account by Vargas Llosa, who was awarded the Nobel Prize for Literature in
2010, is an account of the human rights abuses in the Congo. Vargas Llosa makes
a sharp contrast between Casement’s approach with that of Joseph Conrad, who
expressed the view, in Heart of Darkness, that backward Africa had
brought out the primitive instincts of Europeans.

Casement’s
second major investigation concerned the activities of the London-based
Peruvian Amazon Company in the Putumayo region of Peru. Casement exposed the
brutal practices which were related to harvesting rubber, and of which the
victims were indigenous peoples. Again, Vargas Llosa describes the abuses in
great detail. One feature that will be of particular interest to modern-day
human rights scholars is the focus on corporate social liability for human
rights abuses. The horrific activities of the Peruvian Amazon Company were
quietly tolerated by the Peruvian government. But Casement’s conclusions were
directed at London, where the company had its headquarters and took its
profits.

The third theme
of the book is Casement’s conversion to Irish nationalism. Vargas Llosa
presents this as the logical progression of the views that emerged from his
work in the Congo and Amazonia, and which made Casement ‘one of the great
anti-colonial fighters and defenders of human rights and indigenous cultures of
his time’. The author explains how Casement began his career driven by a
mission to bring modern civilization to Africa and elsewhere, but through his
human rights investigations came to understand that the abuses he encountered
were not unfortunate distortions of the colonial project but rather their
inevitable consequences, built as they were upon ideas of racial and cultural
superiority. From there, it was a small step for Casement to become, in his
final years, a campaigner for Irish independence.

When the
First World War broke out, Casement went to Berlin to enlist German support in
the struggle for Irish independence. He was captured by the British upon his
return to Ireland, in 1916, and executed in London’s Pentonville Prison on 3
August of that year. In keeping with British prison practice, his remains were
buried within the prison walls. In the 1960s, Prime Minister Wilson allowed
them to be moved to Ireland, although on the condition they not be taken to
Northern Ireland. They were buried in Dublin’s Glasnevin cemetery following a
State funeral addressed by the President.

Vargas Llosa
also deals with Casement’s homosexuality. After his arrest in 1916, the British
worked to undermine any sympathy that Casement might attract by disseminating
copies of Casement’s so-called ‘black diaries’, which recounted Casement’s
propensity for casual sexual encounters with young men, some of them in their
teens. Vargas Llosa presents this material with considerable sympathy. He
accepts the validity of the controversial diaries, which many have claimed were
forged, but takes the view that much of them reflect Casement’s fantasies
rather than actual activity.

Authored by
one of the great writers of our time, The Dream of the Celt, which
appeared in English translation a few months ago, belongs on the bookshelf of
human rights investigators, campaigners and scholars.

The Editorial Team

W. Schabas, Y. McDermott, J. Powderly, N. Hayes

William A. Schabas is professor of international law at Middlesex University in London. He is also professor of international criminal law and human rights at Leiden University, emeritus professor human rights law at the Irish Centre for Human Rights of the National University of Ireland Galway, and an honorary professor at the Chinese Academy of Social Sciences, in Beijing and Wuhan University. He is the author of more than 20 books and 300 journal articles, on such subjects as the abolition of capital punishment, genocide and the international criminal tribunals. Professor Schabas was a member of the Sierra Leone Truth and Reconciliation Commission. He was a member of the Board of Trustees of the United Nations Voluntary Fund for Technical Cooperation in Human Rights and president of the International Association of Genocide Scholars. He serves as president of the Irish Branch of the International Law Association chair of the Institute for International Criminal Investigation. He is an Officer of the Order of Canada and a member of the Royal Irish Academy. Here is the full c.v.

Dr YvonneMcDermott is Senior Lecturer in Law at Bangor University, UK, where she is also Director of Teaching and Learning and Co-Director of the Bangor Centre for International Law. Yvonne is a graduate of the National University of Ireland, Galway (B. Corp. Law, LL.B.), Leiden University (LL.M. cum laude) and the Irish Centre for Human Rights (Ph.D.). Her research focuses on fair trial rights, international criminal procedure and international criminal law. She is the author of Fairness in International Criminal Trials (Oxford University Press, 2016).

Niamh Hayes has been the Head of Office for the Institute for International Criminal Investigations (IICI) in The Hague since September 2012. She is about to complete her Ph.D. on the investigation and prosecution of sexual violence by international criminal tribunals at the Irish Centre for Human Rights, National University of Ireland Galway. She previously worked for Women's Initiatives for Gender Justice as a legal consultant, and as an intern for the defence at the ICTY in the Karadzic case. She has lectured on international criminal law and international law at Trinity College Dublin and, along with Prof. William Schabas and Dr. Yvonne McDermott, is a co-editor of The Ashgate Research Companion to International Criminal Law: Critical Perspectives (Ashgate, 2013). She is the author of over 45 case reports for the Oxford Reports on International Criminal Law and has published numerous articles and book chapters on the investigation and prosecution of sexual and gender-based violence as international crimes.

Joseph Powderly is Assistant Professor of Public International Law at the Grotius Centre for International Legal Studies, Leiden University. Between September 2008 and January 2010, he was a Doctoral Fellow/Researcher at the Irish Centre for Human Rights, where he worked, among other projects, on a Irish Government-funded investigation and report into the possible perpetration of crimes against humanity against the Rohingya people of North Rakhine State, Burma/Myanmar. He is currently in the process of completing his doctoral research which looks at the impact of theories of judicial interpretation on the development of international criminal and international humanitarian law. The central thesis aims to identify and analyze the potential emergence of a specific theory of interpretation within the sphere of judicial creativity. Along with Dr. Shane Darcy of the Irish Centre for Human Rights, he is co-editor of and contributor to the edited collection Judicial Creativity in International Criminal Tribunals which was published by Oxford University Press in 2010. He has written over 80 case-reports for the Oxford Reports on International Criminal Law, as well as numerous book chapters and academic articles on topics ranging from the principle of complementarity to Irish involvement in the drafting of the Geneva Conventions. In December 2010, he was appointed Managing Editor of the peer-reviewed journal Criminal Law Forum. His research interests while focusing on international criminal and international humanitarian law also include topics such as the history of international law and freedom of expression.

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Interested in PhD studies in human rights?

Students interested in pursuing a doctorate in the field of human rights are encouraged to explore the possibility of working at Middlesex University under the supervision of Professor William A. Schabas and his colleagues. For inquiries, write to: w.schabas@mdx.ac.uk.